If the presidency really wanted to emulate more advanced democracies, it ought to know that to prosecute a person who has mastery of the law, one needs to be clinical and it is best to catch them in the act…
Recently, the Department of State Services (DSS) carried out unprecedented arrests of some judges of superior courts in the country. This Gestapo-style operation attracted both uproar and applaud, but the question nobody is asking is: To what end?
Subsequent releases of correspondence between the DSS and the National Judicial Council (NJC), prior to the arrests, show that the NJC was aware of the DSS’ investigation of some judges and had taken steps in the preceding months, pursuant to petitions and notice from the DSS. Those steps culminated in the recommendation of, at least, one of the judges for compulsory retirement, even before the raids. Apparently, not being satisfied and irritated by the NJC’s insistence on procedure, the DSS or whoever was pulling the strings behind the scenes, jumped the gun and moved to recover some sums of money.
The reaction of the NJC to the arrests should not come as a surprise to anyone, as the judiciary was practically under siege in the hours it took to complete that operation. Even from an objective standpoint, the lack of sensitivity and the brashness of the action is clear; there were far better approaches to dealing with the issue if, indeed, it was an honest effort at unearthing judicial wantonness and corruption at the highest level.
The only result of the action of the DSS now is that it has played into the media’s appetite for sensationalism at the cost of rubbishing the independence of the judiciary. It has further injured public confidence in the court system and most regrettably, it has put the judiciary on the defensive. This could have been avoided if the DSS had continued to work with the NJC to find diplomatic ways to respond to perceived resistance. Furthermore, an understanding of the workings of the judiciary as an entire arm of government and not a mere agency, for instance, would have benefited the architects of the raid.
Departing from the extensive arguments that have been made on far lesser issues of concern at this time, such as when arrests can be made and under what law, the question of why the DSS has become an anti-corruption agency needs to be addressed. At a time when oil pipelines are being destroyed, costing us huge revenue we can scarcely spare and the single Boko Haram threat has become a double threat under two factions, this is hardly a DSS priority.
All it has told us is that it found money in the home of judges, which, by itself, is not a crime. There is no crime in any law called ‘corruption’. Corruption is merely a moral slant that can lead to committing a financial crime, for instance, and crimes need to be proven.
According to Section 2 (3) of the Security Agencies Act, CAP N74, Laws of the Federation of Nigeria, 2004, the aim of the DSS is the prevention and detection of crimes against the internal security of the country, as well as protection of non-military classified matters concerning the internal security of the country. Therefore, arresting judges for acts that are purported to have been concluded and in relation only to personal financial matters at the point of arrest, cannot fall under this description. While sub-section (3) (c) of that section puts the DSS under the direction of the National Assembly or president, it must also relate to national security; and of a pressing nature, one would imagine.
Nigerians are aware that sections of the judiciary have been compromised and that there is need to clean up what should be a most revered arm of government. Just a few weeks before the DSS raids, this column ran a series on the rot in the judiciary, emphasising the corrupting influence of money bags, many of whom are members of the executive and legislature, on the integrity of judges and on justice in our courts. In the third and final instalment of that series, particular warning was given about refraining from adopting gung-ho tactics in fighting corruption within the judiciary. Using the law against the interpreters of the law, especially at the highest level, is a delicate matter that should not be approached rashly; but alas, this is exactly what the DSS has done.
After the raids, the DSS released a list of sums of money recovered, like the Economic and Financial Crimes Commission (EFCC), usually does. What it did not tell us categorically is where the monies came from, who the bribing parties were, when or how the bribe took place and all that. All it has told us is that it found money in the home of judges, which, by itself, is not a crime. There is no crime in any law called ‘corruption’. Corruption is merely a moral slant that can lead to committing a financial crime, for instance, and crimes need to be proven.
To prove money laundering or bribery, more fact and evidence is needed than just the fact that money was found in judges’ houses. In 2012, the same security agency, operating then as the State Security Service, obtained video and audio of bribery taking place in real time and handed it to the EFCC, as it was a financial matter. Surely, we all remember Farouk Lawan’s case, but that is a discussion for another day. Now that the DSS has constituted itself into a ‘financial misconduct bureau’, will it also try and convict the judges?
…the arrested judges will be taken to the same courts whose heads constitute the NJC and if there is no more substance than is already available at present, then the result will be the same, except if the DSS and the presidency plan to try the arrested judges in Ghana…
The argument of the NJC is not without merit. The DSS and, in fact, any agency should not willy-nilly invite sitting judges at their whim and cast aspersions on their integrity without very good cause and without going through proper channels. Petitions are filed indiscriminately and if a judge is to report to any and all government agencies that get a petition, then no court will ever sit. If the NJC, constituted of the best legal minds in the land, does not find merit to a petition, it behoves upon an agency to gather more facts that will be enough for the council to take action so he/she can be fully available for investigation and possible prosecution, without casting aspersion on the sanctity of the judiciary. Notably, the NJC never questioned the investigation by the DSS and not some more suited agency.
Mind you, the arrested judges will be taken to the same courts whose heads constitute the NJC and if there is no more substance than is already available at present, then the result will be the same, except if the DSS and the presidency plan to try the arrested judges in Ghana, which was referred to in a “Presidential Legal Review” rebutting the NJC reaction. It will then mean that the eroding of our democracy, the piercing of the sanctity of the judiciary, and the ridicule of government processes in the court of public opinion would have been in vain.
If the presidency really wanted to emulate more advanced democracies, it ought to know that to prosecute a person who has mastery of the law, one needs to be clinical and it is best to catch them in the act and only move at a point where there is no more room for denial. In the same “Presidential Legal Review”, it cited the cases of arrest of judges in the US and other countries, saying it is nothing new. Willie Singletary, a former Philadelphia Traffic Court Judge in the US was arrested in 2013 after a video of him demanding bribe was obtained by the Federal Bureau of Investigation (FBI) – a meticulous sting operation for a judge of such a low court. Already, Justice Sylvester Ngwuta, has written to the CJN claiming money was planted in his house and if a justice of the Supreme Court already has a defence, given the shoddy nature of this operation, one can only imagine the outcome of trial.
Painted in any light, the DSS has set a bad precedent that is leading to chaos in the court rooms. Already, indiscriminate petitions against judges are being forwarded to the DSS on a daily basis in its ‘surplus role’ as an anti-corruption agency and judges are recusing themselves based on this fact alone, with good reason. The sooner these consequences sink in, the better for President Muhammadu Buhari and his errant minions.
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